Liddick: Obamacare case: An ominous shift

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Today's the day. Today in Washington, D.C., 26 states explain to the nine Justices of the US Supreme Court why the Obamacare mandate that everyone in the US buy health insurance is unconstitutional. The future of the republic is quite literally riding on their decision.

The importance given this case by the Supreme Court is indicated by the almost-unprecedented three days accorded to it; Monday, argument centered on the question of standing, with the federal government arguing that plaintiffs must wait until the first penalties are assessed in 2015 before applying for judicial relief. Wednesday, the Court will hear "cleanup issues" - what happens if the insurance mandate is found unconstitutional, and the related issue of whether the law, through changes to Medicaid, unconstitutionally forces the states to spend more on health care for the poor. Today is the heart of the argument: Does the federal government have the constitutional power to mandate that every citizen purchase health care?

One should know the table is rigged: One of the Justices was formerly US Solicitor General and as such, advocated strenuously for the law that is the subject of the case in hand. That she has not heeded the commonsense admonition not to be a judge in one's own case shows, as much as anything can, the lengths to which the current administration and its partisans will go to preserve this overreach.

Proponents base their arguments on the commerce clause - or the Constitutional power to raise taxes. Oft-cited examples of the latter include taxes on gasoline or electricity; the former usually involves reference to previous expansions of powers under the Commerce Clause, often through citing the "necessary and proper" phrase used to carry out enumerated powers. Both arguments are anorexically thin.

The precedent of taxation is just silly: If one buys no gasoline, one pays no taxes. Ditto for electricity obtained from one's own windmill or solar panels. But under Obamacare, one must buy insurance - a product purchased from a private vendor - if one breathes. There is no option. This is the sort of Federal mandate the Founders assured would not happen. For examples, see Hamilton's Federalist #9, #17 or most particularly, #78. And yet, here we are.

The other line of argument cites previous expansions of the Commerce Clause - say, to underpin the Civil Rights Act of 1964, or to prohibit growing of marijuana by residents of the several states. This is a line of reasoning which holds that, since the reach of the federal government has expanded in the past, it must be allowed to continue to do so. This logical bootstrapping recognizes no limit to federal power; it is ipso facto - on its face and by its nature - a rejection of the divided and republican (small R) nature of our government which has served us so well these past 224 years.

Those pursuing this line use the 1942 precedent of Wickard v. Filburn, which is revealing. Briefly, the case involved a federal regulation establishing a quota for wheat farmers; it was prohibitive, not mandatory. Although the decision swept away the longstanding boundaries on use of the Commerce Clause set by Gibbons v. Odgen, it did not require owners of delicatessens and filling stations to buy wheat to avoid fines, so the decision's application is questionable. Ironically, those dubious at the time about the expanded reach the decision portended were assured that there were no broader implications, and yet ... here we are.

There is also the "argument from necessity": America's health care costs are skyrocketing because those without health insurance are overusing emergency rooms. Therefore, we have to mandate that everyone buy health insurance, with generous taxpayer-provided stipends for those who cannot pay. Question, please: Who was it that required emergency rooms to treat anyone who appears there, for anything, no matter what?

If these arguments prevail, the nature of our government will be altered out of all recognition. The federal government, envisioned by those who created it as a single element in a network of governments; as limited to a few specific activities and constrained by Constitutional limits, will become what the anti-Federalists predicted and feared: a consolidated, national government, without restraint or counter, able to reach into the minutest part of individual citizens' lives to regulate; to demand; to control. State laws on marijuana use? How droll ...

Yes, you will have buy a Chevy Volt. The economy and the environment demand it. Yes, you will have to eat broccoli. You have to be healthy, because that effects the economy. No, you can't have heart surgery. You're too old and it's too expensive. Take two aspirin and call us if you live.

Cross your fingers. After 224 years of success, we're about to learn if we're going to throw it all away.